I concur with the majority of the Court in holding that the first two paragraphs of the quoted portion of the State Attorney's argument to the jury, which were not objected to by defendant when made, are subject to some criticism. I do not, however, think it was the intention of the State Attorney to make an appeal to racial prejudice, and I am not at all convinced that it was or could have been, so considered by the jury. It must be remembered that both the defendant and the deceased were of the same race. The first complaint that was made of the above mentioned portion of the State Attorney's argument was in the motion for new trial.

Furthermore, it should be noted that these statements of the State Attorney were made in discussing the proposition as to whether or not the jury should recommend mercy, provided they should find the defendant guilty of murder in the first degree. This argument was not made with reference to the guilt or innocence of the defendant.

In the same case cited in the majority opinion, Henderson v. State, 94 Fla. 318, 113 So. 689, it was also said:

"We realize that the situation in some cases justifies very strong appeals by the prosecuting attorney to arouse the patriotism and sense of public duty of the jurors to perform the duty which the law and the evidence in a case plainly justifies and calls for. *Page 32

"The welfare of society and the safety and security of the great body of law abiding citizenry can only be maintained by the just and courageous enforcement of the laws of the land, and all legitimate argument and full exercise of the greatest forensic talents of our public prosecutors are sometimes necessary to be directed to that end, and their fair and proper use should be permitted and encouraged rather than cramped or denied. But such arguments are all the more telling and effective when kept within proper bounds."

The defendant was found by the jury to be guilty of murder in the second degree only. I do not think any reversible error was committed by the trial court in not voluntarily instructing the jury to disregard that part of the State Attorney's argument set forth in the majority opinion, especially in view of the fact that counsel for defendant interposed no objection whatever thereto, at the time, which he could doubtless have done if he had considered the argument improper or prejudicial.

I think, therefore, that the judgment below should be affirmed.